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May 02, 2019
By: Venkatesh Nayak
Readers may remember the controversy created by the Central Government's proposal to set up two committees to inquire into complaints against serving and former members of the Central Information Commission (CIC). Several RTI advocators have commented on this latest move of the Government to curb the CIC's autonomy. I had also critically examined its implications in light of media reports of this proposal. The Department of Personnel and Training (DoPT) has refused to divulge details of this proposal under The Right to Information Act, 2005 (RTI Act) claiming that it is not final yet.
The RTI Intervention
Soon after this proposal was reported widely in the media, I decided to seek the following information, from the DoPT, which is under the Prime Minister's portfolio, through an Online RTI application:
"1) A clear photocopy of the communication sent to the Central Information Commission (CIC) regarding the proposal to set up committees to inquire into complaints received against Chief Information Commissioners and Information Commissioners, whether serving or retired, along with annexures, if any;
2) A clear photocopy of all replies received from the CIC, till date, in relation to the communication described at para number 1 above; and
3) A clear photocopy of all file notings and correspondence available on record in paper or electronic form regarding the proposal described at para number 1 above." (see 1st attachment)
After 28 days, the DoPT's Central Public Information Officer (CPIO) has posted a reply online stating as follows:
"This proposal is at initial stage, comments of CIC have been sought on the proposal, which is yet to be received. Nothing concrete, which can be submitted in reply to the application under RTI Act, 2005. Further, as per section 19(1) of the RTI Act, 2005, if you are not satisfied with the reply of CPIO or not getting reply within time limit, you may file first appeal in concerned First Appellate Authority. Even if not satisfied with reply or not getting reply of first appeal from First Appellate Authority, you may file second appeal in the concerned State/Central Information Commission as per section 19(3) of the RTI Act, 2005. Copy of the RTI Act, 2005 is attached." (see 2nd attachment)
I am yet to get a hard copy of this reply. Meanwhile, several other RTI users and activists might have sought similar information from the DoPT.
What is wrong with the CPIO's reply?
The DoPT's CPIO has neither rejected the RTI application nor supplied the requested information- these are the only two courses of action valid and available to him under the RTI Act. Knowing fully well that the proposal had not yet been finalised, I had asked only for a copy of the communication sent to the CIC about this proposal and related file notings. Under Section 4(1)(c) and (d) of the RTI Act, the DoPT has a statutory obligation to make all relevant facts about such an important proposal public as citizens are an affected party. However, the Government has allowed some "information" to be leaked through the media instead of publicising a copy of the proposal and the details of the decision making process as to who mooted the idea first and who all were involved in the discussion around it. This is indeed a Quest for Transparency- a highlight of the website of the PMO.
Even more amusing is the CPIO's general reply that I could move a State Information Commission in addition to the CIC, if I am not satisfied with the outcome of the first appeal process. State Information Commissions do not have jurisdiction over the DoPT. The supply of an e-copy of the RTI Act, free of cost is the icing on the cake. However, the reply reveals that the CIC which is said to have discussed the proposal, has not yet sent any response to the DoPT.
Of course I will do the usual appeals in this case. It is annoying to learn that the Government does not want to take into account the very stakeholders whose complaints will provide work for the two inquiry committees. This is also against the spirit of the pre-Legislative Consultation Policy adopted in February 2014 which requires all Departments, including the DoPT, to seek people's views on such important proposals.
The CIC has also elected not to go public with this communication despite civil society and the citizenry standing by it every time the Government sought to amend the Act in a retrograde manner. Last year, civil society and the media had vigorously opposed the Government's proposal to amend the RTI Act to downgrade the salaries of Information Commissioners and fix their tenure at will.
What is the current controversy all about?
The RTI Act provides for the financial and operational autonomy of the CIC to ensure that it is not unduly influenced by the Central Government and the 2400+ public authorities under its jurisdiction, that often oppose citizens' demand for transparency about their actions and omissions. Section 12(4) of the RTI Act states that the CIC will function autonomously without being subject to the directions of any authority. Under Section 23, even courts are barred from entertaining any suit, application or proceeding against an order made under the RTI Act. The only recourse available is a judicial review of the CIC's decision by invoking the writ jurisdiction of the High Courts and/or the Supreme Court under the Constitution.
Section 14(1) of the RTI Act provides for the removal of the Chief Information Commissioner and other Information Commissioners in the CIC by the President of India on grounds of proved misbehaviour or incapacity only after the matter has been inquired into by the Supreme Court. Section 14(3) of the Act empowers the President of India to remove them unilaterally on grounds of insolvency or if they engage in other kinds of employment outside office or if they are physically or mentally unfit. They may also be removed unilaterally, if they are convicted of offences of moral turpitude such as murder, rape, kidnapping, extortion, robbery or trafficking minors for prostitution.
It is common knowledge, over the last 15 years several citizens have sent complaints about the manner of functioning of the CIC to various authorities in the Central Government including the President of India. Invariably, these complaints land up at the CIC itself for examination and action. The Central Government wants to assume the power to act on such complaints.
According to media reports, the Government wants to set up two committees- both headed by the Cabinet Secretariat to inquire into complaints against the CIC. The first will be chaired by the Cabinet Secretary himself with a retired Chief Information Commissioner as a member which will inquire into complaints against serving and retired Chief ICs. The second committee will be chaired by a Secretary grade officer of the Cabinet Secretariat and have a retired IC as a member to inquire into complaints against serving and retired ICs. The Secretary, DoPT, will be a common member of both committees.
These proposals, if implemented, will seriously compromise the autonomy of the CIC. Even more worrisome is the proposal to inquire into complaints against retired members of the CIC. What action can be taken against them, under the RTI Act is open to guesswork. I could not find any such provision in the RTI Act. These inquiry committees will not only have a chilling effect on the CIC but will also become a trailblazer for State Governments to curb the autonomy of State Information Commissions (SICs).
Principles of natural justice requires that nobody should be a judge in his or her own cause. So letting the CIC examine complaints against itself is not the best option. Putting that power in the hands of the Government, which is in 9.9 out of 10 cases the Respondent party before the CIC, will extinguish the statutorily protected autonomy of the CIC.
What is the way forward?
Other options must be explored. Perhaps such a mechanism can be created within Parliament which placed the transparency law on the statute book. All complaints received against the CIC may be screened first by a committee comprising of MPs who are elected as Independents, to weed out frivolous or baseless allegations. Next, a committee comprising of one member of every party represented in either House may be empowered to examine complaints of a serious nature. This inquiry mechanism must be time-bound and also designed to prevent domination by any political party or group. All this can be done by inserting a new set of RTI Rules, without tinkering with the RTI Act.
However, there may be other views that people may hold about making the CIC and the SICs accountable. These can be ascertained only through a process of widespread consultation. Making the Government's current proposal along with related file notings public, is an essential pre-condition for this consultative process. Does the Government have the will to walk the talk of "Transparency and Good Governance"?